PLJ 2021 Cr.C. (Lahore) 865
Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 497(5), 561-A & 345--Pakistan Penal Code, (XLV of 1860),
S. 489-F--Post-arrest bail was granted on basis of compromise--Dishonest cheque--Compoundable offence--Alleged offence is compoundable in terms of Section 345, Cr.P.C--Provision of Section 345, Cr.P.C. viz-a-viz compounding of offences is bifurcated into two categories i.e. with or without permission of Court--Voluntary issuance of a cheque for, repayment of loan or fulfilment of financial obligation, in-fact amounts to giving of an undertaking
by person that on its presentation, cheque shall be honoured/ encashed--Dishonest intention of person, issuing a cheque, becomes evident, moment through its endorsement in writing, bank refuses to honour it and simultaneously commission of offence under Section 489-F, PPC also takes place--Dishonouring of a cheque, also amounts to breach of commitment/undertaking by accused which he makes with payee--After registration of a criminal case under Section 489-F, PPC, against him, accused if enters into a compromise with person in whose favour, he had issued a cheque, concession of bail, can be granted to him on affirmative nod of complainant because offence is compoundable inter-se parties, without permission of Court--After entering into a compromise with complainant for making payment of amount either mentioned in cheque or settled between parties through compromise, accused once again makes a commitment and if it is again dishonoured, it would amount to a dishonest act in continuation of his earlier breach of commitment, thus rendering him disentitled to further enjoyment and reaping fruit of his misdeed, he earned, by way of compromise--Held: Grant of bail in non-bailable offences is a concession/grace and cannot be claimed as of a right by accused-- Conduct of accused is always considered important and relevant--Considering compoundability of offence under Section 489-F and genuineness of compromise between parties, trial Judge, no legal obligation to assess incriminating material available on record to conclude that whether accused had made out his case of his release on bail within ambit of further inquiry, proceeded to grant post arrest bail to petitioner--Petitioner was released from jail on strength of order and has been enjoying his liberty--Despite being beneficiary of compromise deed, petitioner never raised any objection to execution of document moved an application under Section 497(5), Cr.P.C. seeking cancellation/recalling of bail granting order because off non-fulfilment of conditions of compromise which had become part of judicial record--Presumption of truth is attached to judicial proceedings, under law--Petitioner has misused concession of bail by way of non-fulfillment of conditions of compromise deed by not honouring his commitment/undertaking, thus both Courts below have rightly passed impugned orders, which call for no interference by High Court--Petition was dismissed in limine.
[Pp. 869, 870, 871, 872 & 874] A, B, D, F, G & I
PLD 2016 SC 347 and PLD 2020 Lahore 97.
----S. 489-F--Criminal Procedure Code, 1898, S. 498--Bail before
arrest--Scope of--Cognizable Offence by police--Dishonor of cheque a person accused of committing such offence, if arrested has to move for his release on post arrest bail or apprehending his arrest, has to seek pre-arrest bail, from competent Court--In offences which are compounable inter-se parties without permission of Court, in case of a compromise, under law, Court is not legally bound to consider as to whether accused has made out his case for his release on bail on merits--Court while considering compoundability of such offences and after examining legality and genuineness of compromise is bound only to give an affirmative nod to wishes of parties through its order. [P. 870] C
Criminal Procedure Code, 1898 (V of 1898)--
----S. 345(1)--Duty of Court--Role of Court in dealing with offences which are compoundable inter-se parties, without permission of Court under Section 345(1), Cr.P.C. after examining genuineness of compromise, thus confines to finally giving an effect to such compromise by way of their termination in pending proceedings against accused--Accused gives an undertaking while entering into a compromise, in any of form i.e. affidavit, compromise deed etc. normally in writing containing conditions or otherwise of it that in case, he is granted bail, he shall make payment of amount or fulfil other conditions of compromise, either mentioned in cheque or agreed upon inter-se parties and is tendered for seeking any relief during pendency of proceedings before Court--Accused, in this way, succeeds in earning his liberty and saves himself from facing rigors of remaining in jail, thus such liberty is bartered with complainant in lieu of his commitment by fulfilling conditions--Execution of such compromise deed unless and until, adjuged otherwise by a Court of comptent jurisdiction also amounts to a candid admission of his liability by accused. [P. 871] E
Concession of bail--
----"Compromise"--Petitioner is held disentitled to further enjoy concession of bail, which he earned by way of compromise--By non-adhering to or as a result of non-fulfilment of conditions contained in compromise deed, petitioner has in-fact misused concession of bail--Such concession was extended to petitioner only and only after its execution, compromise deed was also tendered in Court which has also become part of bail granting order itself--Trial Judge while granting bail being under no legal obligation, as observed had given no finding as to whether petitioner had made out his case for his release on bail or not on merits, thus case law relied upon by petitioner is not applicable to facts and circumstances of instant case--There is hardly any uniformity and each and every criminal case rests normally upon distinguishable facts and circumstances.
[P. 873] H
2020 SCMR 1115.
Mian Riaz Hussain Jammu, Advocate for Petitioner.
Mr. Haroon Rasheed, Deputy District Public Prosecutor on Court's call.
Date of hearing: 23.2.2021.
PLJ 2021 Cr.C. (Lahore) 865
Present: Anwaarul Haq Pannun, J.
ZAHID MAHMOOD--Petitioner
versus
ADDITIONAL SESSIONS JUDGE, etc.--Respondents
Crl. Misc. No. 12356-M of 2021, decided on 23.2.2021.
Order
Through this application under Section 561-A, Cr.P.C., the petitioner has called in question the vires of order dated 12.01.2021, whereby the application of the Complainant/Respondent No. 3 filed under Section 497(5), Cr.P.C. for recalling/setting aside the bail granting order dated 21.08.2020 was allowed by learned Senior Civil Judge(Criminal Division) and the order dated 10.02.2021 passed by learned Addl. Sessions Judge, Pakpattan Sharif, whereby the criminal revision petition filed by the petitioner was dismissed, in consequence whereof, the petitoner's post arrest bail granted vide order dated 21.08.2020, on the basis of compromise, in case/FIR No. 366, dated 02.07.2020, registered under Section 489-F, PPC at Police Station Kalyana, Pakpattan Sharif had been cancelled.
2. Precisely, as per FIR, petitioner dishonestly had issued cheque No. PKUNIL-010900022391779616761-675 of amount of
Rs. 14,56,000/- of UBL Chowk Marley Branch to the complainant to repay/fulfil his financial obligation, without ensuring that the cheque upon its presentation before the concerned bank be honoured, the bank, on its presentation, on account of paucity of funds has dishonoured the cheque. The petitioner, after his arrest, submitted an application under Section 497, Cr.P.C. seeking his release on post-arrest bail through his counsel specifically pleading in paragraph No. 4 thereof regarding his compromise with the complainant, before the learned trial Court, which in its verbatim is reproduced hereunder:
یہ کہ سائل کا راضی نامہ ہو گیا ہے۔ بیان حلفی لف ہے۔
The bail petition was allowed by the Court of learned Senior Civil Judge (Criminal Division) Pakpattan Sharif, vide its order dated 21.08.2020. Being relevant, the paragraphs No. 3 & 4 of the said order are reproduced hereunder:
(3) Learned counsel for the petitioner/ accused has argued that compromise between the petitioner & complainant has been affected. In the last he has prayed that while accepting his application petitioner be directed to be released on bail.
(4) On the other hand, learned counsel for the complainant has raised no objection upon acceptance of instant bail application and complainant has recorded his statement regarding compromise with the petitioner/accused Muhammad Zahid as per terms & conditions of Mark-A and raised no objection upon acceptance of bail application and in this regard, statement of complainant has also been recorded on the back of his affidavit i.e. Mark-A.
The relevant portion out of the text of compromise/ agreement deed/affidavit Mark-A, annexed with the petition is also given below:
یہ کہ من مظہر حلفا بیان کرتا ہے کہ ملزم مذکور سے من مظہر کا ضمانت کی حدتک راضی نامہ ہو چکا ہے اور اس راضی نامہ کے تحت ملزم مذکور ضمانت پر رہا ہونے کے بعد FIR مذکورہ چیک نمبری۔ 16761675 مبلغ 1456000/- چودہ لاکھ چھاپن ہزار روپے اندر معیاد ایک ماہ با اخذ رسید وصولی من مظہر کو ادا کرنیکا پابند ہو گا اور اگر ملزم مذکور نے مقرر مدت میں رقم مذکور من مظہر کو ادا نہ کی تو من مظہر کو ملزم مذکور کی ضمانت منسوخ کروانے کا اختیار حاصل ہو گا اور راضی نامہ ختم تصور ہوگا اور من مظہر جملہ کاروائی کا حقدار ہو گا۔ من مظہر حلفا بیان کرتا ہے ملزم کی ضمانت بعد از گرفتاری بمطابق شرائط راضی منظور کیے جانے پر کوئی عذر یا اعتراض نہ ہے۔
In continuation of the above, after recording the statement of the complainant, the petitioner was ordered to be released on bail from the judicial custody, vide its order dated 21.08.2020 by the Court. After his release on bail, however, the petitioner failed to honour the terms of the compromise and make payment of outstanding amount to the complainant/ Respondent No. 3, who moved an application under Section 497 (5), Cr.P.C. for recalling/setting aside the bail granting order, which was allowed by the learned trial Court vide its order dated 12.01.2021. The petitioner, as aforesaid, moved to the Court of learned Addl. Sessions Judge, Pakpattan Sharif, whereby his revision petition was also dismissed vide its order dated 10.02.2021. Hence, this petition.
3. Learned counsel for the petitioner while relying upon the judgment reported as “Jehanzeb Khan vs. The State through A.G. Khyber Pakhtunkhwa and others” (2020 SCMR 1268) contends that (if an accused, on his making out of his case, is released on bail, such order cannot be subjected to any riders or conditions, the order of recalling of bail is not sustainable the impugned orders, therefore, may be set aside and restoring the order dated 21.08.2020, the petitioner may be admitted to pre-arrest bail.
4. On the other hand, learned Prosecutor while taking exception to the above noted contention has opposed by arguing that learned Magistrate passed the order dated 21.08.2020 after examining the genuineness of compromise inter-se the parties only, which is evident from the grounds he urged through his application, contentions of learned counsels representing their respective parties and the operative part of the order dated: 21.08.2020, therefore, the petitioner cannot be allowed to blow hot and cold in the same breath. He has relied upon case reported as Salman Khalid vs. The State, etc." (PLD 2020 Lahore 97) besides ''Sami Ullah and another vs. Laiq Zada and another” (2020 SCMR 1115) to contend that being guilty of misuse of concession of bail, the petitioner is not entitled to enjoy the concession of bail as such, the impugned orders being unexceptional, calls for no interference by this Court..
5. Arguments heard and record perused.
345. Compounding offences. (1) The offences punishable under the Sections of the Pakistan Penal code specified in the first two columns of the table next following may be compounded by the persons mentioned in the third column of that table:
Offence | Sections of Pakistan Penal Code applicable | Persons by whom offence may be compounded |
[Dishonestly issuing a cheque for repayment of loan of fulfillment of an obligation | 489-F | The person in whose favour cheque issued.] |
“Section 345(1), Cr.P.C. enlisted the offences which may be compounded by the specified person without intervention of any Court--Compounding in such cases took effect from the moment the compromise was completely entered into by the parties, the relevant Court which was to try the offence in issue was left with no jurisdiction to refuse to give effect to such a compromise and a party to such a compromise could not resile from the compromise at any subsequent stage of the case-—On the other hand Section 345(2), Cr.P.C. dealt with cases in which the offences specified therein could be compounded only with the permission of the Court and in all such cases any compromise arrived at between the parties on their own at any stage was not to take effect at all unless the Court permitted such compromise to be given effect to and the relevant Court for the purpose was the Court before which prosecution for the relevant offence was pending.”
“At the very outset, Muhammad Amin complainant of the present case submitted before the Court that he has affected compromise with the petitioner/accused Muhammad Zahid and due to which he has no objection upon acceptance of instant bail application and release of petitioner/ accused on bail as per terms & conditions of affidavit i.e. Mark-A and as token of correctness to his statement, his thumb impression/signature alongwith his photo duly verified by his counsel namely Malik Muhammad Razzaq advocate have been taken over the margin of his statement. Since the offence leveled against the petitioner/acused is compoundable in nature. Hence, in view of the statement got recorded by the complainant, petitioner/ accused Muhammad Zahid is admitted to bail subject to furnishing surety bonds to the tune of Rs. 1,00,000/- with one surety in the like amount to the satisfaction of this Court.
“It can safely be concluded that after entering into a compromise with the complainant for making payment of the amount either mentioned in the cheque or settled between the parties at the time of their entering into compromise, the accused once again makes a commitment and as such in case he again dishonors his commitment, which will be deemed to be a repetition and in continuation of his earlier breach of commitment, thus rendering him disentitled to further enjoy and reap the fruit of his misdeed, he earned, by way of compromise.”
“i) If the bail granting order in patently illegal, erroneous, factually incorrect and has resulted into miscarriage of justice.
ii) That the accused has misused the concession of bail in any manner.
iii) That accused has tried to hamper prosecution evidence by persuading/pressurizing prosecution witnesses.
iv) That there is likelihood of absconsion of the accused beyond the jurisdiction of Court.
v) That the accused has attempted to interfere with the smooth course of investigation.
vi) That accused misused his liberty while indulging into similar offence.
vii) That some fresh facts and material has been collected during the course of investigation with tends to establish guilt of the accused."
(A.A.K.) Petition dismissed
0 Comments